TT v Essex County Council

Held, dismissing the claim, that although a 16- or 17-year-old homeless child who was in need ought normally to be provided with accommodation under section 20 of the Children Act 1989, such a child could agree with a local authority to be accommodated otherwise than under section 20 of the 1989 Act provided the local authority offered the child a fair choice between accommodation under section 20 or otherwise than under section 20; that, for the purposes of reaching such an agreement, the local authority had to present the alternatives neutrally and impartially, without applying spin or other undue pressure to solicit the non-section 20 choice by the child; that, ideally, the way in which the alternatives were presented ought to be recorded in a clear memorandum written in plain child-friendly English which the child was given the chance to take away to read and consider before making a final decision; that, on the facts of the present case, (i) the EYPP accommodation in which the claimant had been temporarily accommodated had not been provided under section 20, (ii) the defendant had been entitled to stipulate to the claimant that if she chose the EYPP accommodation it would not be provided under section 20 and (iii) the claimant had agreed to be accommodated on a non-section 20 basis; that, therefore, the claimant had not for the purposes of paragraph 19B(2) of Schedule 2 to the 1989 Act been “looked after” by the defendant while she had been living in the EYPP accommodation; that it followed that the claimant had not been an “eligible child” within paragraph 19B(2) and so had not subsequently been a “relevant child” within section 23A(2) of that Act; and that, further, the defendant had not at the material time operated an unlawful policy pursuant to which accommodation provided through the EYPP was asserted not to be provided under section 20 of the Act (post, paras 21–22, 28, 37, 51–56, 58–59, 64–65, 67, 71–72).

R (M) v Hammersmith and Fulham London Borough Council[2008] 1WLR535, HL(E) and R (G) v Southwark London Borough Council[2009] 1WLR1299, HL(E) considered.

Per curiam. (i) Where a child who has been offered a choice between section 20 and non-section 20 accommodation is placed on an emergency basis in local authority accommodation before reaching a decision, such accommodation is not section 20 accommodation. The legal effect of such a placement during that period of reflection ought to be seen as entirely neutral, so that the ability of the child to make a free and fair choice is maintained and not compromised (post, paras 30–32).

(ii) A declaration can be made in respect of a past wrong which has been made good, but there must be exceptionally good reasons for the court to exercise its discretion to do so. A wish to have a declaration is obviously not of itself a special reason (post, paras 10–11).

(iii) Where an academic claim is determined, it will rarely, if ever, be necessary to do more than to identify past problems and to spell out the remedial standards for the future. Plainly no positive prohibitory or mandatory orders or formal declarations should be made, as such orders or declarations would be wholly inconsistent with the claim being academic (post, paras 17, 70).

(iv) Where the court imposes a reporting restriction order, which is a serious derogation from the principle of open justice, the starting point should always be that the order has an end date, with the burden being on the applicant, if they seek an indefinite order, to demonstrate by clear and cogent evidence why the order should last indefinitely (post, para 88).